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Argentina: Kirchner's uncertain road to justice

It looks like justice, smells like justice, but is it too little too late? Despite the headlines, Cristina Kirchner is highly unlikely to start 2018 behind bars - for treason or corruption.

In order to be detained, Kirchner’s congressional peers must strip her of the legal privileges she acquired when she swore in as a federal senator a week ago.

And no matter how brutal the internal power struggle within Peronism, loyalty is the top trait of a Peronist. We expect senators to rally behind one of the ‘General’s soldiers’ and reject the judge’s order – at least for now. Moreover, legal experts within the ruling Cambiemos coalition agree with the Peronist Party that the latest measures are excessive at this stage of the legal process.

In the meantime, Macri is landed with a political juggling act that was not on his team’s agenda for the always politically risky month of December. Cambiemos has proved that it can regain control of the agenda when caught off guard; but it also has a tendency towards communication errors , which knock back the government’s approval ratings. Ahead of the highly contentious labour reform debate, it simply cannot afford any political damage.

Between a rock and a hard place

Yesterday, Federal Judge Claudio Bonadio acted on the investigation left unfinished by Alberto Nisman, the former federal prosecutor who died in uncertain circumstances after accusing Kirchner of treason in January 2015. Nisman had been in charge of investigating the 1994 terrorist attack on the Argentine-Israeli Community Centre (AMIA) in Buenos Aires, and accused Kirchner – and numerous members of her administration - of striking an oil-for-grains cover-up deal to protect the Iranian officials suspected of masterminding the attack.

Macri now faces having to balance the vengeful demands of his support base with a judicial decision that most legal experts, including some ministers, consider excessive. Most government supporters believe that Nisman was assassinated to silence him and bury the most damning investigation against Kirchner. Cambiemos also embraced that theory during the 2015 campaign. But the government must ensure that Kirchner receives due process, however, lest she becomes a political martyr.

The government has been careful to distance itself – at least formally – from all judicial decisions, in an attempt to re-establish the separation of powers, which were seriously eroded in the Kirchner era. This has translated into a significant improvement in Argentina’s performance on our Judicial Independence Index in the two years since Macri took office.

However, more often than not, contentious decisions catch the government wrong footed. Bonadio’s orders - preventive prison and the removal of Kirchner’s immunity – are contentious because, arguably, Kirchner is not in a position to derail or influence the investigation – which is the prerequisite set out by the penal procedural code for the use of these measures.

Improvement of structural indicators under Macri

Source: Verisk Maplecroft 2017

Adding fuel to the political fire

The timing of Bonadio’s decision is poor at best, and highly politicised at worst. If Congress moves to strip Kirchner off immunity, the political pact Cambiemos has struck with Miguel Pichetto, the leader of the largest Peronist bloc in the Senate, will be at risk of collapse. For Pichetto, only Senators with a ‘firm’ sentence (i.e. one that has been upheld by an appeals court) should lose their immunity. The majority of Cambiemos legislators agree; so a move against Kirchner would be very much seen as political.

Pro-Kirchner organisations, trade unions, and other left-wing parties demonstrated in the Plaza de Mayo; speakers warned that if Kirchner were arrested, the government would face a “storm”. They consider that Kirchner and other former members of her administration are being persecuted.

Clearly, this December’s heatwave is not going to be climatic, but political. If Kirchner is forced to swap her Louis Vuitton bags for prison stripes, maintaining social peace will put all of Macri’s political skills to the test.